MUSHTARI KHAN- vs JEHANGIR KHAN

ORDER

' ABDUL HAMEED DOGAR, J.--- This petition is directed against the judgment, dated 25-4-2005 passed by a learned Single Judge of Peshawar High Court, Peshawar whereby Civil Revision No,292 of 2005 was dismissed and the judgment of appellate Court was maintained.

2. Petitioner has filed a suit against his brother namely respondent Jehangir Khan for specific performance of contract in respect of land described in the plaint. It was also averred in the plaint that in pursuance of exchange deed, dated 10-2-1999 the parties agreed to exchange their respective, lands along with possession. Subsequently, respondent resiled which led the petitioner to file suit. Learned trial Court decreed the suit vide judgment dated 3-3-2004. Appeal preferred against the same was accepted by learned Additional District Judge, Kohat vide judgment, dated 13-1-2005. Feeling aggrieved petitioner preferred civil revision before Peshawar High Court which was also dismissed by impugned judgment dated 25-4-2005.

3. We have heard Hafiz Saeed Ahmed Sheikh, Advocate Supreme Court for petitioner and Sardar Liaqat Ali, Advocate Supreme Court for respondent at length and have minutely gone through the judgments of all the three Courts.

4. At the outset Hafiz Saeed Ahmed Sheikh, learned counsel for the petitioner contended that the judgment of the appellate Court as well as of the Revisional Court are not sustainable as both the Courts have not dilated upon the matter in its true perspective. He criticized the judgment of the High Court and referred to para.8 in which the learned High Court refused to exercise jurisdiction and conclusions drawn by it are against law and facts. He further contended that appellate Court has ignored the provisions of Order XLI, rule 31, C.P.C. While writing the judgment. According to him the judgment of the trial Court was reversed by the appellate Court without advancing any reasons and pointing out as to which evidence was misread or non-appreciated by the trial Court.

Neither points for determination were framed nor was any decision thereon given. Similarly learned High Court while dismissing the revision has also not considered this aspect of the case. Therefore, he submitted that the matter may be remanded to the High Court for proper appreciation of the evidence and disposal in accordance with law.

5. Sardar Liaqat Ali, controverted the above contentions of learned counsel for the petitioner and contended that the judgment of the appellate Court as well as of the High Court are in accordance with law as both the Courts have appreciated the evidence properly.

6. Admittedly the judgment of the trial Court decreeing the suit of the petitioner was reversed by the appellate Court and while reversing the same no proper reasons have been advanced. The High Court has erred in dismissing the revision by holding that it cannot be invoked against the conclusion of law or facts which do not in any way affect the jurisdiction of the Court. It is well- settled that non-reading or misappreciation of evidence also amounts to an illegality to be examined under section 115, C.P.C. By a revisional Court.

7. In view of above this petition is converted into appeal and is allowed. The impugned judgment of the High Court is set aside and the -case is remanded to the High Court for disposal of the revision petition in accordance with law. No order as to costs.